This action was commenced in a justice’s court. The plaintiff complained of the defendant “for one wolf robe and cushion, left in the possession and care of the defendant, which he neglects and refuses to deliver, and claims damages in the sum of $40.” The answer was a general denial, &c. A trial was had before the justice, who rendered judgment in favor of the plaintiff for $45 damages and costs, and the defendant appealed to the county court, where the cause was tried, and a verdict rendered for the plaintiff; which, upon appeal to this court, was set aside and a new trial ordered. *190The cause was again tried, in the county court, and before opening the case to the jury, the plaintiff’s counsel moved to amend the complaint by alleging that the defendant was an inn-keeper, and that the plaintiff was his guest, at the time of the loss of the property in question. The motion was denied, except on condition that the plaintiff pay the costs of the previous trial in the county court, and the costs of the appeal to the general term of this court. The plaintiff’s counsel declined to amend on the terms imposed by the court, and excepted to the ruling. 'And it is insisted, now, that the ruling of the court below, in that respect, was erroneous; that such error was material, and calls for a new trial.
It is hardly worth while to discuss the correctness of the decision below, for the plain reason that the amendment applied for could not possibly have benefited the plaintiff.
The undisputed facts show, that Charles Coykendall, who left the robe at the defendant’s house, and who was the son of the plaintiff, was twenty-five years of age; that he went to the defendant’s house to attend a ball or dance, having a lady in his charge; that he borrowed the property in question of his father; that he went there on his own business; and that in doing so he was in nowise acting as the agent or servant of the plaintiff. And no claim is made that he was a member of the plaintiff’s family.
How the duties of an inn-keeper, as such, are due only to his guests. To constitute one a guest, it is not necessary that he be at the inn in person. It is enough that his property be there, in the charge of his wife, or servant, or agent, who is there in his employment, or as a member of his family. But they must be there in such way that the law implies the property, while there, to be in his possession, and not in the possession of the person who is there with it as his bailee. It will not do to hold that a livery man who lets to another a horse or team, which the hirer takes to an inn, can claim, as between himself and *191the inn-keeper, to be a guest, so as to charge him as innkeeper for the horse or team. It is the bailee of the liveryman that is the guest, and to him only is the inn-keeper responsible as such. And the rule is the same whether the owner of the property hires it out, or lends the use of it to the person who takes it to the inn. In either case, the owner can claim only the ordinary rights of owner, as against a subsequent bailee, and not the special rights which belong to a guest; unless such special rights are expressly transferred to him by his bailee. And the case also shows that when Charles Coykeqdall finally left the premises of the defendant, he left the property there to be called for thereafter; so that as to him, also, the relation of inn-keeper and guest, if it had ever existed, was at an end.
The plaintiff, then, if he can maintain this action, must do so upon the principles which govern ordinary transac- 1 tions of bailment, and without reference to the special obligations imposed upon an inn-keeper,
Soon after arriving at the defendant’s house, Charles^ Coykendall handed his robe to one Case, who had charge of the robe-room, and had his name pinned on to it. He bought his ticket for the ball for his lady and himself, and at about half past two o’clock in the morning left, with his partner, for home, having paid twenty-five cents for keeping the robe, and taking it with him. After leaving the defendant’s house, and within a few rods of it, he sheered to the left and drove off’ the bank. His buggy was tipped over and broken, and his horse escaped from him, with the buggy, except the top part of it, including the robe and cushions. He took the robe, and, with his lady, went back to the house, handed his robe to Case, who said he would pin his name on it again. He then procured a light and went to the place of the accident, found a cushion of the buggy, brought it to the house and delivered it to Case. He staid there, with the lady, about *192three hours, having, during that time, a private room, and they left again, paying no bill for the time they were then there. Just before starting, he asked the bar-keeper (not Case) if it would be perfectly safe for him to leave the cushion and robe there, until he could send for them m a day or two; Case, who was at the robe-room, having given him permission to leave them there; and he did leave them, and went home.
The plaintiff'’s counsel then asked the witness : “ What did the bar-keeper answer, when you asked him if the robe and cushion would be safe if left there until you could send for them?” This was objected to, on the ground that “it is not admissible under the pleadings; also that the bar-tender is not proved to be in the employ of the defendant.” The objection was sustained by the court, and the plaintiff’s counsel excepted. The only evidence then, or at any time, given, in the case, to connect the alleged bar-keeper with the defendant, was the testimony of Charles Coykendall that he “ had seen this bar-keeper waiting on people to drinks, that evening.” I think the objection to the evidence offered was correct. Enough had not been shown to make the defendant responsible for any undertaking of his, especially one in regard to storage of property, after the relation of inn-keeper and guest, if it existed at all, was ended.
It appeared on the trial that within a day or two thereafter, Charles Coykendall demanded the robe and cushion of the defendant; that the defendant did not deliver them to him, and no account was given, on the trial, as to what became of them. Case was not called by either party, as a witness, and aside from the fact that he had charge of the robe-room that night, his relations to the defendant were not clearly defined, and the testimony of the defendant himself, on that point, was to some extent contradictory of itself. As, for instance, he testified consecutively as follows: “Ho one else in the house was charged with *193talcing charge of robes, &c., except Case. Case was instructed not to check anything unless it belonged to the dancing party.”
Q. “How was Case to know who belonged to the party?”
A. “ I instructed hiña; no, I did not give Case any special instructions, that evening, on that subject.
And Charles Coykendall testified that on the trial of the cause before the justice, the defendant swore that Case was in his employ that evening, and that the defendant told him, when he demanded the robe, that Case took charge of the robe-room, that evening.
The only question I have, in regard to the case, is, whether the above and the like evidence which was given, should not have been submitted to the jury, according to the request of the plaintiff’s counsel, for them to decide whether or not Case had authority to receive the robe and cushion for the defendant, of Charles Coykendall, when he returned with them after the accident; and whether the defendant or his agent did not afterwards deliver them to a wrong party. For if he had authority to receive them, and they in that way came to the possession of the defendant, and were afterwards delivered by him to a wrong person, or otherwise lost by his gross negligence, he is liable, whether as inn-keeper or not, and whether he was a bailee for hire, or gratuitously so,
The rule is that a bailee for hire, or a gratuitous bailee, who delivers the goods he has as such bailee, to a wrong party, or who, after they are demanded of him, does not in any way account for their loss, is liable to the'true owner for their value. (Willard v. Bridge, 4 Barb. 361. Beardslee v. Richardson, 11 Wend. 25. 2 Parsons on Cont. 5th ed. 96, note w. Esmay v. Fanning, 5 How. 228, 232.)
And if the defendant is liable for gross negligence as such bailee, the action for not delivering, on the proper demand being made, can be maintained either by the *194bailee from whom the defendant received it, or by the real owner.
[Onondaga General Term, April 6, 1869.The court erred in not submitting the case to the jury, and in nonsuiting the plaintiff.
A new trial should be granted, with costs to abide the event.
Bacon, Mullin, Foster and Morgan, Justices.]